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TMI Blog2017 (3) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial building or premises. Regarding ordinance factory - Held that: - the definition covers industrial building and premises thereof. Ordnance factory premises are covered by industrial building. Even otherwise clause (ii) of the definition clearly mentions factory as one of the premises covered for tax liability. The factory in the present case is not in relation to agriculture, horticulture, animal husbandry or for dairying. As such in the absence of any exclusion from the statutory definition, the appellants are liable to service tax on this account. With reference to cleaning activity of circuit house, college, hospital and school premises, we find these are not covered by the tax entry either as commercial or industrial building or as a factory building and machinery, tank or reservoir of commercial and industrial building and premises thereof. Extended period of limitation - Held that: - The conduct of the appellant regarding the disclosure of details referring to the earlier meetings with the jurisdictional officers brings out the fact that allegation of suppression or willful misstatement cannot be sustained in this case against the appellant - the appellant specifically i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cleaning of airport cannot be considered as cleaning of commercial premises. (f) The Colleges and school for which cleaning activity was undertaken by the appellant are all educational institutions recognized by law and cannot be considered as commercial or industrial building and premises. (g) The demand in the present case is covering the extended period. The appellant themselves informed the department on 23.09.2007 regarding the activities undertaken by them and the tax treatment for the same. Thereafter, there was no communication from the department. There is no suppression of any material fact by the appellant. The impugned order did not give any reason or supporting evidence for invoking extended period for demand. Non filing of ST-3 returns was the only reason stated in the impugned order. When the appellants themselves informed the department regarding their activities and their views on tax liability, the question of filing ST-3 returns, claiming exemption is of no relevance. Accordingly, the demand for extended period is to be held as legally unsustainable. On the same reasons, the penalties imposed on the appellants are also liable to be set aside. 3. The Ld. AR r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d deals with large number of activities undertaken by the appellant, the present appeal is only with reference of following activities. Description Total Tax Demanded Airport Authority of India 144850 Various contracts with Railways 8046925 Cleaning of Office of GM- Ordinance Factory, Khamaria 1159418 New Circuit House 130331 Cleaning Service to Hitkarni College and Hospital 301870 Services to Delhi Public School and Jain International School 249993 Total 10033387 We note that the appellants contested the findings in the impugned order on the ground that the original authority considered the nature of organization and not nature of building or premises to decide tax liability. However, we find that the appellant themselves based their arguments emphasizing more on the nature of railway, airport authority and ordnance factory. We note that the tax liability is with reference to the building or premises as mentioned above. However, to decide the nature of building, whether commercial / industrial, it is necessarily, the nature and the functions of the occupant is examined. On the arguments of the appellant that the airport authority and railways are public utilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, admittedly the functions and economic circumstances of the railways as a whole evolved over a period and the facts as relevant to the current date has to be examined. 7. Public utilities are those business undertakings which provide necessary day to day service to the society like dealing in water/ electricity supply, transport etc. Since larger investments are required in providing large scale public utility service, some amount of monopolistic situation emerges in some of the cases. Necessary regulations/ protections are also evolved by the Government for orderly and uninterpreted public utility service by the organizations providing the same. The term public utility itself has not been statutorily defined. In terms of Section 2(N)(VI) of Industrial Disputes Act, 1947, many industries listed in the first schedule may be declared to be public utility service by the Government. A perusal of the Schedule will show large number of activities are listed which can be declared as public utility service. These are banking, coal, cement, mining, shipping, airport authority etc. The point to be noted is that being a public utility by itself does not provide any immunity from service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to service tax on this account. 10. Regarding service tax liability with reference to cleaning activity of circuit house, college, hospital and school premises, we find these are not covered by the tax entry either as commercial or industrial building or as a factory building and machinery, tank or reservoir of commercial and industrial building and premises thereof. Ld. Counsel categorically submitted that the education institutions are all recognized by law for providing approved degrees or school education. Sample bills raised are also submitted. As such, we find no justification to confirm the service tax liability on these activities. The impugned order confirmed the tax liability for these premises only on the ground that the appellant failed to produce documentary evidence etc. On the contrary we also note that the department also did not produce supporting evidence to show that cleaning activity of these premises will be covered by the tax entry. As such examining the scope of these building and the submissions made by the appellant, we find the tax liability to this portion cannot be sustained. 11. The appellant strongly contested the demand for extended the period. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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